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Oyoumick v. State (6/6/2008) ap-2172

Oyoumick v. State (6/6/2008) ap-2172

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
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             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


MELVIN OYOUMICK, )
) Court of Appeals No. A-9736
Appellant, ) Trial Court No. 2NO-02-973 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2172 June 6, 2008
)
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Anchorage, Eric  A.  Aarseth,
          Judge.

          Appearances:   Leslie A.  Hiebert,  Assistant
          Public  Advocate, and Joshua P. Fink,  Public
          Advocate,   Anchorage,  for  the   Appellant.
          Diane   L.   Wendlandt,  Assistant   Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          This  appeal  presents several questions regarding  the
rules  that  govern the re-sentencing of first  felony  offenders
under  Alaskas  pre-2005 sentencing law when their  probation  is
revoked.
          The  defendant,  Melvin  Oyoumick,  was  convicted   of
attempted  second-degree sexual abuse  of  a  minor,  a  class  C
felony.   Oyoumick  was  a  first felony  offender.   Because  no
presumptive  term  was  prescribed  for  first  felony  offenders
convicted   of  class  C  felonies  under  the  pre-2005   Alaska
sentencing  law,  Oyoumicks sentencing  was  governed  by  former
AS  12.55.125(k)(2)  the legislatures codification of the  first-
offender  sentencing rule that was first announced by this  Court
in Austin v. State, 627 P.2d 657, 657-58 (Alaska App. 1981).
          Oyoumick  initially  received a  sentence  of  3  years
imprisonment  with  2 years suspended  a sentence  that  did  not
require    proof    of   aggravating   factors    under    former
AS 12.55.125(k)(2) because Oyoumicks time to serve did not exceed
the  2-year  presumptive  term of imprisonment  that  would  have
applied  to  a  second  felony offender  convicted  of  the  same
offense.1
          After  serving  his  1-year prison term,  Oyoumick  was
released  on  probation.  In November 2004, the State  petitioned
the superior court to revoke Oyoumicks probation because a breath
test  administered by his probation officer showed  that  he  was
intoxicated.  (Oyoumicks blood alcohol content was .119 percent.)
The   superior  court  ordered  Oyoumick  to  obtain  an  alcohol
assessment, but the court returned him to probation.
          In  April 2006, the State again petitioned the superior
court   to   revoke  Oyoumicks  probation  after  he  was   found
intoxicated  on  the  streets of Anchorage.  (His  blood  alcohol
content  was .263 percent.)  At this point, Oyoumick  decided  to
decline  further  probation, and he asked the superior  court  to
impose  a  sentence consisting solely of time  to  serve.   After
hearing the parties arguments regarding the proper sentence,  the
superior court ordered Oyoumick to serve the remaining 2 years of
his  sentence.  This brought Oyoumicks total term of imprisonment
to  3  years  to  serve  a sentence which, had  it  been  imposed
initially, would have required proof of aggravating factors under
former AS 12.55.125(k)(2).
          Oyoumick  claims that this sentence violates his  Sixth
Amendment  right  to  jury  trial under Blakely  v.  Washington,2
because  he  has now (following the revocation of his  probation)
received a sentence that would have required proof of aggravating
factors had it been imposed initially.
          (At  Oyoumicks  original sentencing,  the  judge  found
three  aggravating factors under AS 12.55.155(c).  However, these
aggravating factors were not Blakely-compliant  that is, they did
not  rest  on Oyoumicks prior convictions, nor were they conceded
by Oyoumick during the sentencing proceedings.)
          We  addressed a similar situation in Surrells v. State,
151 P.3d 483 (Alaska App. 2006).  The defendant in Surrells was a
pre-March  2005  first felony offender who initially  received  a
sentence that did not require proof of aggravating factors  under
former AS 12.55.125(k)(2); in other words, the defendant received
no more time to serve than the presumptive term prescribed for  a
second  felony  offender  convicted  of  the  same  offense.   In
Surrells,  we  held  that the right to jury trial  recognized  in
Blakely  does  not  limit the superior courts  authority  to  re-
sentence such a defendant after the court revokes their probation
even  if the defendants new sentence exceeds the presumptive term
that would apply to a second felony offender.  Id. at 488-490.
          Oyoumick  argues  that  Surrells was  wrongly  decided.
          However, with one exception (which we discuss next in this
opinion),   Oyoumicks  attacks  on  Surrells  are   cursory   and
unconvincing.
          In  previous  decisions, this Court has  declared  that
when  the superior court revokes the probation of a first  felony
offender under the pre-2005 sentencing law, the court should  not
impose  a  total time to serve that exceeds the presumptive  term
for a second felony offender unless the overall circumstances  of
the  case  (the defendants background, the facts of the  original
offense,   and   the  defendants  conduct  while  on   probation)
demonstrate that the defendants case is more serious than that of
a typical second felony offender convicted of the same offense.3
          Phrased  another way, the relevant question facing  the
superior  court  in  such cases is whether the  totality  of  the
circumstances   all  the facts presented  to  the  court  at  the
original sentencing proceedings, plus all the facts presented  to
the court during the probation revocation proceedings  would have
justified  a  sentence in excess of the Austin  ceiling  if  this
totality  of  circumstances  had been  known  when  the  original
sentence was imposed.4
          In Witt v. State, 725 P.2d 723, 724 (Alaska App. 1986),
this  Court clarified that no particular aggravating factor  need
be  proved  in  order to justify the imposition  of  a  probation
revocation sentence more severe than the presumptive term  for  a
second felony offender.  Rather, we declared that if a defendants
probation violations established that the defendant had unusually
poor  prospects for rehabilitation, this fact could be deemed  an
extraordinary  circumstance  justifying  the  imposition   of   a
probation  revocation  sentence in excess of  the  normal  Austin
ceiling.   725  P.2d at 724; see also Kriner v. State,  798  P.2d
359, 361 (Alaska App. 1990).
          And in Surrells, we held that the Blakely right of jury
trial   does  not  apply  to  the  superior  courts  finding   of
aggravating  circumstances or extraordinary  circumstances  at  a
probation revocation hearing.  151 P.3d at 492-95.
          In  the  course  of  our discussion of  this  point  in
Surrells,  we  declared that this Court has never held  that,  at
probation  revocation proceedings, the sentencing  court  had  to
find  aggravating factors or extraordinary circumstances by clear
and  convincing evidence as opposed to the preponderance  of  the
evidence  standard that normally applies at probation  revocation
hearings.   Id. at 492.  This statement was wrong.   As  Oyoumick
points  out in his brief, this Court squarely held in  Andrew  v.
State,  835 P.2d 1251, 1254 (Alaska App. 1992), that, for  Austin
rule purposes, aggravating factors or extraordinary circumstances
must  be  established by clear and convincing evidence  ...  when
they occur in the context of probation revocation proceedings.
          Nevertheless, even with the standard of proof clarified
as  proof  by  clear and convincing evidence,  we  stand  by  our
conclusion in Surrells that
          
          the  probation revocation rules ... announced
          in  Chrisman, Luepke, and Witt are not formal
          requirements of Alaskas [pre-2005] sentencing
          statutes.  Rather, these rules are guidelines
          guidelines   designed  to  avoid  unjustified
          sentencing disparity in cases not governed by
          the  presumptive  sentencing  statutes.   And
          because  the  rules  announced  in  Chrisman,
          Luepke,  and Witt are guidelines, the Blakely
          right to jury trial does not apply to them.
          
          Surrells, 151 P.3d at 494.
                    Accordingly,  we  reject  Oyoumicks
          claim   that  the  superior  court   violated
          Blakely when the court sentenced Oyoumick  to
          3  years  to  serve  after Oyoumick  declined
          further probation.
          Even  though  the  superior  courts
authority  to  re-sentence Oyoumick  was  not
restricted   by   Blakely,   Oyoumicks    re-
sentencing  was  governed  by  several  rules
under  state law.  The remainder of Oyoumicks
arguments involve alleged violations of these
state sentencing rules.
          This   Court   has  held   that   a
sentencing   judge   is   not   allowed    to
automatically  impose  all  of  a  defendants
suspended   jail  time  when  the   defendant
violates   the   conditions   of   probation.
Rather,  the judge must consider the totality
of    the   circumstances   (the   defendants
background and original offense, coupled with
the defendants conduct on probation) and then
weigh  these  circumstances in light  of  the
sentencing  criteria codified  in  AS  12.55.
005.5
          These  principles apply equally  to
situations  like  Oyoumicks  case,  where   a
defendant  refuses  further  probation.   The
fact  that  a  defendant  decides  to  refuse
further   probation  does  not,  in   itself,
automatically  justify  imposition   of   the
defendants  entire remaining  suspended  jail
time.6
          Moreover,  as explained  above,  if
the   judge   at   a   probation   revocation
proceeding wishes to impose a total  term  to
serve that exceeds the presumptive term for a
second felony offender convicted of the  same
offense,  the judge must affirmatively  find,
by  clear  and convincing evidence, that  the
totality  of  the defendants  background  and
conduct  (including  the  defendants  conduct
while  on  probation) demonstrates  that  the
defendants case is more serious than that  of
a typical second felony offender convicted of
the  same  offense  in other words, that  the
circumstances would have justified a sentence
in  excess  of  the Austin ceiling  if  these
          circumstances had been known when the
original sentence was imposed.
          Oyoumick  contends that  the  judge
who    imposed   his   probation   revocation
sentence,  Superior  Court  Judge   Eric   A.
Aarseth,   violated   these   principles   by
(1)  automatically  sentencing  Oyoumick   to
serve  the entire remaining 2 years in prison
after  Oyoumick  declined further  probation,
and by (2) failing to make a finding that the
circumstances  of Oyoumicks case  constituted
either  aggravating factors or  extraordinary
circumstances.  But the record does not  bear
out Oyoumicks claims.
          It   is   true  that,  during   the
sentencing  hearing, Judge  Aarseth  declared
that  he had never had another defendant  say
that   they  rejected  probation  but  wanted
something  less  than all  of  the  remaining
suspended  time to be imposed.  Nevertheless,
Judge  Aarseth recognized that  Oyoumick  was
asking him to impose something less than  the
entire  remaining  2  years,  and  the  judge
declared that one of his tasks at the hearing
would be to decide whether ... some, none, or
all of those 2 years are going to be imposed.
          A  little  later in the  sentencing
hearing,  Judge  Aarseth  expressly  declared
that he was not simply saying, theres 2 years
[left on Oyoumicks sentence], bam!  you know,
impose [the 2 years] and off we go.  Instead,
Judge  Aarseth  told Oyoumicks  attorney,  Im
listening  to your argument.  Im  willing  to
make  that decision [as to whether to  impose
the entire remaining jail time].
          In  other  words, the record  shows
that  Judge Aarseth did not simply  impose  2
years because that was how much time remained
on  Oyoumicks sentence.  The next question is
whether  Judge Aarseth abused his  sentencing
discretion  when  he  ultimately  decided  to
impose the entire remaining 2 years.
          The prosecutor actively argued that
Judge  Aarseth should impose all of Oyoumicks
remaining jail time.  The prosecutor  pointed
out  that,  in addition to his violations  of
probation,   Oyoumick   had   several   prior
misdemeanor convictions, he appeared to  have
an  uncontrollable addiction to alcohol,  and
he   had  declined  to  participate  in   sex
offender treatment.
          In   response,  Oyoumicks  attorney
pointed  out  that Oyoumick  had  voluntarily
relinquished   his  parental   rights,   thus
addressing  the  family issue  that  came  up
because  of  these  allegations  [of   sexual
abuse].   The  defense attorney  also  argued
that  Oyoumick had learned his  lesson  about
alcohol  abuse,  because  his  drinking   had
landed him back in jail.  In sum, the defense
attorney  urged Judge Aarseth to  follow  the
probation officers recommendation of  only  1
more year to serve.
          (The defense attorney also candidly
admitted   that,   in  large   measure,   her
arguments about the applicable sentencing law
were   being   put  forward  in  defense   of
principle  rather than for the actual  effect
that  they would have on Oyoumicks situation.
The defense attorney told Judge Aarseth that,
because   Oyoumick   had  been   incarcerated
pending the probation revocation hearing,  he
[had already] done about 22 months of the  3-
year  sentence.   In  other  words,  he  [was
already]  so close to having done  all  [his]
time    apparently,  because  of  good   time
credit.)
          After hearing these arguments,  and
after   Oyoumick  declined   the   right   of
allocution,   Judge  Aarseth  announced   his
decision.   Acknowledging  that  the  defense
attorney  had  made very strong arguments  in
Oyoumicks  favor, Judge Aarseth  nevertheless
concluded  that he should impose all  of  the
remaining 2 years of Oyoumicks sentence.   He
explained his decision this way:

     The  Court:   Judge Esch  [the  original
sentencing    judge]    made    a    thorough
consideration of all of the facts of the case
of  you  as a person, of the offense  itself,
[and  of]  the circumstances of the  offense.
He  ...  obviously  was  placing  significant
emphasis   on   [the  sentencing   goal   of]
rehabilitation by suspending two years of the
[jail] time.  ...

     [I interpret] Judge Esch [as saying], Im
going  to  suspend a certain amount [of  jail
time]  because  I believe that rehabilitation
ought to be a factor ... , and I believe that
there  is potential for the defendant  to  do
that.  ...

     [But]  when a defendant comes  back  and
says,  Im  going  to reject  [probation],  Im
basically going to eliminate your ability  as
a  judge  and  [the ability of  the]  justice
system  to be able to address that [goal]  of
rehabilitation, ... [this] requires  [me]  to
take  a  look  at [the remaining]  sentencing
criteria[.]
     .  .  .

     And   not   only  [are  you]   rejecting
probation,  [but]  Im also  seeing  what  the
probation  officer is reporting.   ...   [The
officers  report]  talks  about  you  as   an
untreated  sex  offender, and it  [describes]
statements  made by you about  [not  needing]
treatment[.]  ...

     That  tells me a lot [about] what I need
to  do  in terms -of the sentencing criteria.
...   It is the decision of this Court  that,
... because the rehabilitation [component  of
the  original sentence] has been removed  ...
by  the defendant from my discretion, both in
his  voluntary  decision [to  reject  further
probation  supervision] and in [his]  conduct
... as reported by the probation officer, ...
I  [need  to]  impose the [entire]  remaining
suspended time.

          As explained above, this Court held
in   Witt   v.   State  that  no   particular
aggravating factor need be proved in order to
justify   the   imposition  of  a   probation
revocation  sentence  more  severe  than  the
presumptive   term  for   a   second   felony
offender.   Rather,  we declared  that  if  a
defendants  probation violations  established
that   the   defendant  had  unusually   poor
prospects for rehabilitation, this fact could
be   deemed   an  extraordinary  circumstance
justifying  the  imposition  of  a  probation
revocation  sentence in excess of the  normal
Austin ceiling.  725 P.2d at 724.
          Here,    Oyoumicks    conduct    on
probation   in  particular, his drinking  and
his   rejection   of  sex  offender   therapy
provided a reasonable basis for Judge Aarseth
to  be  pessimistic about Oyoumicks prospects
for  rehabilitation.  In addition,  Oyoumicks
decision  to reject further court supervision
effectively barred the superior court and the
Department   of  Corrections  from   pursuing
future    efforts   to   achieve    Oyoumicks
rehabilitation.   Upon  this  record,   Judge
Aarseth   could   reasonably  conclude   that
Oyoumicks  poor  prospects for rehabilitation
constituted   an  extraordinary  circumstance
(within the meaning of Witt) that justified a
total sentence greater than 2 years to serve.
          For these reasons, the judgement of
the superior court is AFFIRMED.
          Given   our  resolution  of   these
issues,   we   conclude  that   the   parties
remaining arguments are moot.

_______________________________
  1 See former AS 12.55.125(e)(1) (pre-March 2005 version).

  2 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

3  E.g.,  Chrisman  v.  State, 789 P.2d  370,  371  (Alaska  App.
1990); Witt v. State, 725 P.2d 723, 724 (Alaska App. 1986).

  4 Luepke v. State, 765 P.2d 988, 990-91 (Alaska App. 1988).

5See Betzner v. State, 768 P.2d 1150, 1155-56 (Alaska App.
1989);  Luepke  v. State, 765 P.2d 988, 990-91  (Alaska
App.  1988).   These  cases  refer  to  the  sentencing
criteria  as  the  Chaney criteria because  the  Alaska
Supreme  Court  first  articulated  the  criteria  that
should  govern sentencing decisions in State v. Chaney,
477 P.2d 441, 443-44 (Alaska 1970).

6DeMario v. State, 933 P.2d 558, 562 (Alaska App. 1997).

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